DEC Did Not Act Outside of Its Authority in Promulgating Regulations that Required Cleanup of Contaminated Properties to "Pre-Disposal Conditions" under the State Inactive Hazardous Waste Disposal Site Act

The Court of Appeals of New York recently held that the New York State Department of Environmental Conservation ("DEC") did not exceed its authority or act contrary to state law in enacting certain regulations with respect to remedial programs implemented to clean inactive hazardous waste disposal sites.

The Court's decision in In the Matter of New York State Superfund Coalition, Inc. v. New York State Department of Environmental Conservation, 2011 NY Slip Op 08996 (Dec. 15, 2011), settled a challenge to the DEC's inactive hazardous waste disposal site regulations that began over two years ago.

The Superfund Coalition is a non-profit corporation whose members consist of commercial entities that own lands in New York that are listed on the registry of sites subject to DEC regulation. The Superfund Coalition filed a joint Article 78 and declaratory judgment action challenging the DEC's inactive hazardous waste disposal site regulations that required remediation to "pre-disposal conditions" as outside of the scope of DEC's statutory authority.

Specifically at issue was whether the DEC regulations promulgated at 6 NYCRR 375-2.8(a) and 6 NYCRR 375-1.8(f)(9)(i), which call for the restoration of inactive hazardous waste disposal sites to "pre-disposal conditions" exceed the authority of the DEC under the state statute, Environmental Conservation Law ("ECL") § 27-1313(5)(d), which provides in pertinent part, that the goal of a remedial program is "a complete cleanup of the site through the elimination of the significant threat to the environment posed by the disposal of hazardous wastes at the site" (emphasis added).

The Superfund Coalition argued that, under the clear language of the ECL, "a complete cleanup" is effectuated only by "elimination of the significant threat to the environment;" the DEC's regulations requiring remediation to "pre-disposal conditions" commands more cleanup than is required by the statute and, therefore, exceeds the DEC's authority. The Court disagreed.

Rejecting the Superfund Coalition's argument that cleanup to pre-disposal conditions would require removal of "every last molecule of contamination" on the site, the Court held that "the stated goal of a 'complete' cleanup under section 27-1313(5)(d) is aspirational since the statute recognizes that DEC may implement limited actions that reduce rather than completely eliminate dangers." Important to the Court's decision upholding DEC's regulations was that DEC may consider technical feasibility and cost-effectiveness of a proposed remedy before a remedial action is finalized, and may impose institutional or engineering controls on those properties where "pristine" cleanup levels are not feasible. Thus, because the regulations direct remediation to "pre-disposal conditions, to the extent feasible" (emphasis added), they are in agreement with the statute's overarching authority for "a complete cleanup."

The Court concluded: "In sum, there is no discernible difference between the use of the phrase 'complete cleanup' in section 27-1313(5)(d) and 'pre-disposal conditions, to the extent feasible' in DEC's regulations."

Dissenting Opinion

Judges Pigott and Smith disagreed with the majority's holdings. In their dissenting opinion, these Judges agreed with the Superfund Coalition's interpretation that section 27-1313(5)(d) of the ECL contemplated "complete cleanup" only by "the elimination of the significant threat," and that this was the intended limit of the remedial program. It was the dissent's conclusion that: "Therefore, 6 NYCRR 375-2.8(a)'s directive that the remedial program's goal is to achieve 'pre-disposal conditions' not only directly contradicts [the state] statute, . . . but it also exceeds the powers the Legislature granted to the DEC through ECL 27-1313(5)(d)'s enactment" (internal citations omitted).

What does this mean for you?

Despite the majority's assumption that cleanup to "pre-disposal conditions, to the extent feasible" does not mean remediation to "pristine" levels where "every last molecule of contamination" on the site must be cleaned-up, as the dissent points out, the term "pre-disposal conditions" is undefined - cleanup to before whose disposal? - and it is the DEC who has the sole authority to decide the meaning of that requirement and what is the "extent feasible" of remediation to "pre-disposal conditions." Clean-up to "pre-disposal" conditions could require the party stepping up to the plate to remediate not only the disposal of contaminants for which he is legally (but often not causally) responsible, but also to clean up earlier disposals by unrelated parties.

Similarly, persons responsible for remediating inactive hazardous waste disposal sites in New York are in the same boat they've always been in, with the possibility that DEC might impose the burden to eliminate insignificant threats to the environment, under the guise of reaching "pre-disposal conditions."

This is just one more example of where an environmental attorney can coordinate between the responsible party, the environmental consultants, and the DEC to ensure that enough - but not too much - remediation is required for a contaminated property under the New York Inactive Hazardous Waste Disposal Sites Act. "Enough" remediation to eliminate the significant threat is much more affordable - i.e., a real estate investor can usually perform such a cleanup within a reasonable budget - than a cleanup to "pre-disposal" conditions, which can easily double the cost of "eliminating the significant threat."

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